Senator WALSH of Montana. You think that is the opinion that was the subject of discussion between you and Mr. Kelley, giving rise to the remark which was quoted?

Mr. FINNEY. No; that was not the opinion. It was the primary opinion which was discussed by Mr. Kelley and myself; the later decision prepared by me and signed by Secretary Work found the locations valid.

Senator WALSH of Montana. I call your attention to a statement in this article of Mr. Kelley.

Mr. FINNEY. Just a moment; I can finish this. You refer to some statement where I was alleged to have said I would not have signed one of the prior opinions, or that I thought that one of the prior opinions was wrong. I said it must have referred to this Geological Survey rule, if I made any such statement.

Senator WALSH of Montana. I was calling your attention to this statement in the Kelley article, Mr. Finney, article 4, the FreemanSummers decision: He said, "I did not write the first decision in this case. I do not understand how I ever permitted that decision to get by me and bear my signature."

Now you did not really write the first decision, did you, Mr. Finney?

Mr. FINNEY. Personally, I did not write the first three decisions. Senator WALSH of Montana. We will confine our attention first to the first decision. You did not write the first decision?

Mr. FINNEY. I did not.

Senator WALSH of Montana. But you passed it?

Mr. FINNEY. I signed it as my decision.

Senator WALSH of Montana. And you say, "I do not understand how I ever permitted that decision to get by me and bear my signature."

Mr. FINNEY. I am not admitting that is correct.

Senator WALSH of Montana. I understand you are not. I just want to get the facts about the matter. You said when you were here the other day that you could not have said that about the first decision, because you approved that, and approve it now.

Mr. FINNEY. Yes.

Senator WALSH of Montana. On the facts as they were before you at that time you are now satisfied with that opinion?

Mr. FINNEY. Yes.

Senator WALSH of Montana. So you said that if you made any such remark as this, it must have referred to some other decision than the first decision?

Mr. FINNEY. Yes, sir.

Senator WALSH of Montana. And you think now it must have referred to this opinion to which you have now called our attention? Mr. FINNEY. Yes, sir; that is correct.

Senator WALSH of Montana. That, however, did get by you and you signed it?

Mr. FINNEY. Yes, sir; I did.

Senator WALSH of Montana. And you now insist it does not correctly express your view.

Mr. FINNEY. No, sir; because in all my experience in dealing with mining cases, we have never established a hard and fast rule that

there must be so many barrels or gallons of oil, or ounces of gold to justify the miner in making the location.

Senator WALSH of Montana. The point is now you do not approve the decision and you never did.

Mr. FINNEY. Not the part which applies to this rule.

Senator WALSH of Montana. That is the meat of that decision, is it not?

Mr. FINNEY. It is substantially so, although the latter part of it ordered a new hearing at which they could put in new evidence.

Senator WALSH of Montana. Can you give us any explanation now, Mr. Finney, as to how you ever came to sign that, when it does not express your views now and never did express your views?

Mr. FINNEY. I can not say especially. I can not recall distinctly why I allowed it to go through with that in. I am not infallible, and I did not realize I was attempting to lay down a rule in that decision that no location could be valid unless there were so many gallons of oil to the ton.

Senator WALSH of Montana. Do you remember the circumstances of your signing that, Mr. Finney?

Mr. FINNEY. No; it is just one in hundreds that I signed, Senator. Mr. Phillips was a lawyer in the department. He had also made some study of geology in one of the schools, and I think he probably personally thought this Geological Survey rule was a good one. I do not. I do not think you can lay down a yardstick.

Senator WALSH of Montana. When was your attention first called to this decision in such manner that you recognized you were in error in signing it?

Mr. FINNEY. As near as I can recall now, it was during the general hearing which was held before the Secretary of the Interior on the 1st of December, 1926. A number of the lawyers representing shale claimants commenced to argue and talk about that rule, and if you will examine that record you will see I made a statement at that time.

Senator WALSH of Montana. I notice much of the argument is directed to that rule.

Mr. FINNEY. Yes.

Senator WALSH of Montana. You think that was the first time your attention was called to it?

Mr. FINNEY. That was the first time it was brought to my attention; yes, sir.

Senator WALSH of Montana. We want to get back now to the circumstances giving rise to that opinion. The case had run its regular and usual course, had come by various appeals to the Secretary of the Interior, and the Secretary of the Interior had ruled that there was no sufficient discovery.

Mr. FINNEY. Yes, sir.

Senator WALSH of Montana. And then a motion for a rehearing was made, and there was further argument upon the matter. The motion for rehearing was denied in another hearing.

Mr. FINNEY. Yes, sir.

Senator WALSH of Montana. Affirming the decision theretofore taken.

Mr. FINNEY. That is correct.

Senator WALSH of Montana. Then an application was made, as I understand you, for the exercise of supervisory control by the Secretary.

Mr. FINNEY. That is right.

Senator WALSH of Montana. Under all ordinary circumstances the denial of the motion for a rehearing would end the proceedings. Mr. FINNEY. That is ordinarily true. There is provision in our rules of practice which permits the filing of such a petition and its granting is wholly discretionary.

Senator WALSH of Montana. That is, however, an extraordinary proceeding.

Mr. FINNEY. I guess you could call it extraordinary. It is exercised quite frequently. It is not a matter of right. It is a matter of privilege.

Senator WALSH of Montana. Oh, yes; I want to get some idea about how often the privilege is exercised.

Mr. FINNEY. Well, we have had quite a large number filed, as I recall, during the last several years.

Senator WALSH of Montana. Ordinarily there would have to be something out of the question, something extraordinary, to evoke the exercise of that power.

Mr. FINNEY. They ordinarily must show either absolute error of some sort in the previous decisions, or in a case like this allege that they will be able to produce new and additional evidence.

Senator WALSH of Montana. Up to that time, up to the time of the application for the exercise of supervisory control, there have been no such rules laid down, as required 15 gallons per ton to constitute a discovery.

Mr. FINNEY. The rule had been in existence, but it had not been laid down in the decision.

Senator WALSH of Montana. You had not applied any such rule in this case?

Mr. FINNEY. No.

Senator WALSH of Montana. Nor in any other case, so far as you know?

Mr. FINNEY. No.

Senator WALSH of Montana. So that, although the Geological Survey had a rule of that character, and the classification of lands, it had never been applied in your branch in the matter of the issuance of patents?

Mr. FINNEY. As far as I recall it had not.

Senator WALSH of Montana. Now just what was the showing that was made, Mr. Finney, to induce the exercise by the Secretary of this extraordinary power of review?

Mr. FINNEY. Various affidavits have been filed. I do not know that I have copies of them here, Senator. I have here a copy of the petition for the exercise of supervisory authority, supported by the affidavit of Freeman, the mining locator.

Senator WALSH of Montana. Your opinion here does not recite at least any extraordinary conditions that seem to prevail in this

case.

Let me read again:

By decision of December 20, 1924, the department directed a dismissal of the protest on the ground, in part, that no actual discovery of a valuable

deposit of oil shale was shown by testimony adduced in the protest proceeding to have been made by the protestant or his predecessors in interest within the limits of any of said claims prior to the approval of the leasing act of February 25, 1920, or the diligent prosecution of work leading to such a discovery. That decision was on motion for rehearing adhered to by departmental decision of May 23, 1925, which also denied an alternative motion for a new trial, the latter on the ground, in substance, that the allegations contained in the affidavits filed in support of the motion were insufficient, if substantiated at a further hearing, to establish the existence of a valid discovery upon any of the claims as of the date of said act, or to show diligent prosecution of work looking to discovery

That is to say, both the motion for rehearing upon the showing made and the affidavits supporting the contention that they could prove discovery, the motion for a new trial was likewise denied. (Reading:)

To support the petition now under consideration, wherein a new trial is sought, there is filed an affidavit by the petitioner in which he alleges:

That affiant now offers, and declares himself able to show at a further hearing, should one be ordered, that where there was, prior to February 25, 1920, exposed, naturally or as a result of development work, on each of the placer claims in conflict with said homestead entry, a valuable deposit of shale-oil bearing rock in place, of such thickness and carrying such shale-oil content as to be and constitute a valuable mineral deposit within the meaning and intent of the placer mining law.

That is what he was required to do in the first place, was it not? Mr. FINNEY. He should have made the showing in the first place. Senator WALSH of Montana. When he made his motion for a new trial, if he had any other evidence or could make a better showing, that would have been the place to present that, would it not?

Mr. FINNEY. It would have been, but the department was not satisfied they had done so, and another part of this same affidavit from which you are reading says:

That contrary to the statements and conclusions of said decision as described in the last preceding paragraph, it was the clear intention and purpose of affiant in the affidavits filed in support of said motion for rehearing, to "declare himself able to show at a further hearing" that he was able and willing to produce competent evidence to show beyond a question of doubt the exact facts which the conclusion above quoted indicates

Senator WALSII of Montana. What do you read from?
Mr. FINNEY. From the affidavit. [Continues reading:]

indicates that he had not offered to show, and affiant alleges that there is nothing in the affidavit filed in support of said motion for rehearing, to justify the conclusion that affiant was thereby offering only to show discoveries of mineral on the claims in question as the result of excavations subsequent to the hearing, or subsequent to February 25, 1920.

He alleged that he would be able to show new and additional evidence of discoveries prior to the act of 1920.

His attorneys concluded their petition by saying:

Counsel now simply urge the department give Freeman the chance to prove the facts.

Our sole object in reopening this case was to give a citizen of the United States, who said he had not been able to put his evidence, a chance to put it in. That was to be considered when it was read with the entire record.

Senator WALSH of Montana. Mr. Finney, that was his application for a new trial, was it not? He asked for a new trial.

Mr. FINNEY. Yes.

Senator WALSH of Montana. Because he was able to make better proof on a new trial than he had made in the first place?

Mr. FINNEY. Yes.

Senator WALSH of Montana. You denied his application for a new trial, did you not?

Mr. FINNEY. I denied his motion for rehearing, which was in the alternative. His motion for rehearing first said that my original decision was erroneous. He asked for its reversal. That was denied. In the alternative he said he would like to have a new trial. Senator WALSH of Montana. And that was denied?

Mr. FINNEY. That showing was found insufficient, and it was denied, and then he filed the petition which we have been discussing. Senator WALSH of Montana. What was there in the petition for supervisory control concerning what he could prove, which was different from the showing made in the motion for a new trial?

Mr. FINNEY. The affidavit and statement in the petition were more definite as to what he was prepared to prove.

Senator WALSH of Montana. What does he say in his affidavit he was prepared to prove?

Mr. FINNEY. To get the whole picture, we would have to read the petition filed by the attorneys, as well as the affidavit.

I will read the affidavit. [Reading:]

J. D. Freeman, being duly sworn on oath, deposes and states: That he is the party plaintiff named in the above-entitled proceeding, and makes this affidavit in support of his petition for the exercise of supervisory authority by the Secretary of the Interior.

That by decision of May 23, 1925, the Secretary denied and dismissed affiant's motion for rehearing and new trial; that said decision is apparently based primarily on the conclusion of fact that—

There is nothing in the evidence tending to show that at the date of the act a deposit of shale valuable on account of its oil content, was naturally exposed within the limits of any of the claims, nor that there had been performed upon any particular one of said claims any work that artificially exposed such a deposit."

That said decision is apparently further based on a misapprehension and misinterpretation, not only of the facts disclosed by the record of the hearing in this case, but also of the matters and things set forth and alleged in affidavits filed in support of said motion for rehearing, in that it it concluded and decided that said motion presents no ground for a new trial.

"In view of the protestant's failure to show at the hearing, or to now declare himself able to show at a further hearing, should one be ordered, that there was at the date of the act physically exposed within the limits of any of said claims, a deposit of oil shale of such quality and thickness as to warrant the exposure being regarded as the discovery of a valuable mineral deposit," and the statement and discussion in the decision indicates a conclusion on the part of the Secretary that affiant has only offered to show and to prove the disclosure of valuable mineral on each of the claims in controversy as a result of excavations and development subsequent to the hearing in said case. Senator WALSH of Montana. He is simply telling what your decision was.

Mr. FINNEY. Yes.

Senator WALSH of Montana. Now we will hear what he can prove. Mr. FINNEY (reading):

That contrary to the statements and conclusions of said decision as described in the last preceding paragraph, it was the clear intention and purpose of affiant in the affidavit filed in support of said motion for rehearing, to "declare himself able to show at a further hearing" that he was able and willing to produce competent evidence to show beyond a question of doubt the